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Commonwealth v. Louise Woodward, cross examination of Dr. Eli Newberger

October 15, 1997

CROSS-EXAMINATION BY MR. SCHECK

Q Good morning, Dr. Newberger.

A Good morning.

MR. SCHECK: Good morning, ladies and gentlemen of the jury.

Q Dr. Newberger, as you indicated in your last answer, you believe in this case that there was both an incident of impact and a period of prolonged severe frenzied shaking, right?

A I believe that there was at least one impact

sufficient to create the skull fracture —

Q One impact —

A There may well have been more in the course of the interval, which may have in the course of the assault been intermittent. In other words, it may not necessarily have been all delivered with the same assaultive pattern or motion. It could have been a process where the child may have, for whatever reason, provoked the person who assaulted the child —

THE COURT: I think it would best, Doctor, not to use the word "assault," which has connotations. You may certainly use words describing physical activity, but best not to characterize it.

THE WITNESS: Thank you. Your Honor.

Q Doctor, what I'd like to isolate with you, and see if we can agree upon this and then discuss them one by one, are mechanisms; are you with me?

A Yes.

Q All right. So however you hypothesize these

events that you've been describing to the jury, I take it that there are two mechanisms here at issue in terms of your observations. One is that somewhere in the course of what you're telling us you think occurred, there was an impact of the baby's head on a fixed hard surface. There was an impact, right?

A Yes, there was at least one impact sufficient to fracture the occiput.

Q Right. And I think that you, actually, at the end of your direct examination, gave us a physical demonstration of how you think this impact could well have occurred, where you put your hands over your head and simulated the baby's head being slammed down. Isn't that what you did?

A Yes.

Q Okay. So there's impact. Then, in addition, so we're clear about what you're saying, in addition, you also maintain that there must have been a mechanism of severe shaking here, right?

A Yes.

Q All right. Now, let's discuss first the impact.

Isn't it your position that the degree of force of this impact is on the order of a child falling out of a second-story window onto concrete?

A Yes.

Q No doubt about that in your mind?

A If I were to estimate ~

Q So the answer is "yes," there's no doubt about that in your mind?

A No, please understand counsel —

THE COURT: Excuse me. Doctor. But you must answer yes or no if you can.

THE WITNESS: It's the concept of "no doubt," Your Honor, that confuses.

MR. SCHECK: I'll withdraw the "no

doubt."

Q If Dr. Smith analogized the velocity of possible impact here as the equivalent of a car hitting a baby carriage, would you agree with that? MR. LEONE: Objection. THE COURT: On what ground? MR. LEONE: Asking for the opinion of other witness' testimony.

THE COURT: No, he's stating that it's the equivalent of stating something and asking if the doctor agrees with him. It's a fair question. Q You'd agree with that assessment.

A I need more information, counsel: How fast was the car going, and where would it be hitting the baby carriage, and where would the baby be.

Q Well, fair enough. So let's stick with your

analysis. You're saying that the degree of force is on the order of a child falling out of a second-story window onto concrete, right?

A That's correct.

Q That's what you told the grand jury in this case.

A That is correct.

Q Isn't that what pretty much you told the police on the morning of February 5th or the afternoon of February 5th after you examined Matthew Eappen, something —

A Well, counsel, when I examined Matthew Eappen, the skull fracture had not yet been identified, and my conversation with the police, if I recall correctly, had nothing to do with the mechanism whereby the skull fracture was obtained.

Q At 11:15, you examined Matthew Eappen, on February 5th, right?

A Yes.

Q Isn't that what you just reviewed?

A That's correct.

Q What I'm talking about is, after the skull films were done, after the skull fracture was discovered, after consultation with Dr. Madsen, there was a time in the afternoon when you had conversations with the police and gave them an assessment of this case.

A Yes, there was a meeting subsequent to the child's

death. That is correct.

Q And that — no, not "subsequent to the death," I'm

talking about February 5th, prior to the arrest of

Louise Woodward. Do you remember talking to them

then?

A Yes. But, counsel, the skull fracture, if I am not mistaken, was not identified at the time of that conversation.

Q All right. Now, you examined Matthew Eappen at 11:15 on February 5th.

A That's correct.

Q You found no bruises on his arms.

A That is true.

Q You found no bruises on his shoulders.

A Also correct.

Q You found no bruises on his ribs or chest.

A That is correct.

Q You found no bruises on his abdomen or stomach area.

A That is correct.

Q You found no bruises on his neck.

A That is correct.

Q You found no bruises on his legs.

A That is also correct.

Q All right. And you examined his head.

A Yes, I did.

Q You've touched or palpated his scalp?

A I did, but as I testified —

Q Did you do that?

A Yes, I did.

Q You found, by observation and feel, no swelling or what we sometimes call even a lump or a goose egg, right?

A No, counsel, there was massive swelling, but the examination, as I testified previously, was necessarily limited.

Q Right, you examined him after surgery, I'm sorry.

A That is correct.

Q Okay. Now, you mentioned something on direct

examination abut the initial physical examination of Matthew on February 4th in the emergency room. Do you remember expressing some views on that?

A If you'll refresh my memory, I can give you a precise response.

Q Well, did you express some doubts as to whether or not the physical examination that was performed on February 4th of Matthew Eappen's body was careful?

A Well, I recall now my previous testimony. And

what I said was that the occiput may not have been fully examined at that time as efforts were made to sustain this child's vital pulmonary and cardiac and cerebral functions.

Q Well, Dr. Newberger, what you're telling this jury is that you are, in fact, speculating - true? -that maybe the emergency room doctor. Dr. Mandl, did not conduct a careful physical examination of Matthew Eappen's head and scalp, isn't that what you just said?

A Manifestly no, counsel, that's a complete mischaracterization in my testimony.

Q You didn't say that?

A That's correct.

Q Didn't you just say that you believed that maybe in the rush to treat Matthew Eappen, the emergency room doctor might have missed swelling of the scalp; isn't that what you were just trying to communicate to the jury?

A I was saying, I did testify, that certain aspects of the examination may have had to have been limited because of the commanding need to save this child's life, if possible. And so very frequently in my work at the outset, bruises, swellings, may not be identified by our professional staff. One can't do everything at once, and one has to attend to what's really important in saving a child's life.

Q Well, so when you just said here the swelling around the head, you're saying "may have been missed"; aren't those words you just used, isn't that what you're saying?

A That is exactly what I'm saying.

Q Thank you. So you're saying that you think that Dr. Mandl, in the course of his physical examination of Matthew Eappen upon arrival at the hospital, may have missed a goose egg or some swelling around the head.

A Yes, he may have missed such swelling.

Q Have you reviewed the medical records to see what the time period was between the initial admission and the C-T scan?

A I don't recall it precisely.

Q Would it ~ are you aware — have you looked at the medical records before you came here to testify?

A I have reviewed the records.

Q You reviewed the medical records before you spoke

to the police on the afternoon of February 5th? A Yes.

Q Did you consult with Dr. Mandl, the emergency room doctor, before you offered an opinion to the police as to the manner and nature of the injuries suffered in this case?

A No.

Q Have you, prior to coming here and testifying,

spoken to Dr. Mandl about his examination?

A No.

Q Yet you feel comfortable telling this jury that he may have missed swelling on the head and incorporating that as a basis for your opinion here.

A Please understand, counsel —

THE COURT: No, excuse me, doctor –

Q Please, can you answer that question?

THE COURT: Excuse me. Mr. Scheck,

excuse me.

MR. SCHECK: I'm sorry.

THE COURT: Just answer yes or no.

THE WITNESS: I can't answer the question yes or no because ~

THE COURT: All right, that's it.

THE WITNESS: Because I didn't incorporate —

THE COURT: That's it, thank you.

Q Now, is the reason that you are saying that Dr.

Mandl may have missed some swelling of the head in his initial examination, is that you have some concern that if, in fact, this baby had been slammed down, as you have hypothesized, with the equivalent degree of force that is on the order of the child falling out of a second-story window onto concrete, that there absolutely must have been some swelling? You have that concern, don't you?

A Not in the least, counsel.

Q Not in the least?

A No. There may not have —

Q All right, thank you. Now, so you feel perfectly comfortable in your assertion that a child can be slammed down, all right, as the matter that you demonstrated for the jury, with the degree of force that is on the order of a child falling out of a second-story window onto concrete, and there will be absolutely no swelling whatsoever on the back of that head, that's your opinion.

A Is that a question?

Q Yes.

A Well, then let me explain.

Q Is that your opinion?

A I can't answer the question yes or no, counsel.

Q You can't?

A But I'd be happy to try to ~

THE COURT: No, easy, easy. Go to a neutral corner, both of you,

Q Doctor, go ahead and explain that.

A Okay.

Q Take your time.

THE COURT: Sidebar, please.

BENCH CONFERENCE

THE COURT: Would you like another drink

of water?

MR. SCHECK: All right, I'll tone it

down.

END OF BENCH CONFERENCE

Q Doctor, please explain, and take your time —

A Ladies and gentlemen of the jury —

Q — and please address the question of why you would expect to have no swelling on the head if the child is slammed down with the degree of force that is on the order of falling out of a second-story window onto concrete. Please explain that.

A Ladies and gentlemen of the jury, I believe that this assault — I beg your pardon — I believe that this child's injuries occurred very shortly prior to the child's coming into the hospital. Very frequently, it takes time for the skin and soft tissues of the skull, after there has been a substantial trauma, to swell. And very frequently, for example, after high velocity automobile accidents, there can be very substantial organ trauma and underlying fractures without overlying skin signs or soft tissue swellings. Sometimes, it takes time for these things to develop.

Especially in a situation where a child's cardiopulmonary capacity is compromised, where the heart may not be beating well, where blood may be being lost for example, into the structures within the skull, there may not be the kind of inflammatory response and soft tissue swelling that there would be under other circumstances. Very frequently, in cases of child abuse, we see quite serious fractures without overlying skin signs or soft tissue swelling. And I believe that the massive force that caused this fracture could well have been associated with next to no swelling at the time that Dr. Mandl conducted his examination.

Q Are you finished?

A Yes, thank you.

Q Now, are you familiar with C-T scans? A Yes.

Q Use those all the time? A Well, our radiologists do; I'm not the radiologist.

Q Yes, but you consult, as part of your child abuse

team, with radiologists.

A Yes.

Q And you're aware of the fact that C-T scans can pick up evidence of swelling that might not be observable to the physician examining with the naked eye.

A That's correct.

Q And is your — did you examine what is known as the "bone window" in this case on the preoperative CAT scan?

A I recall going over the C-T scans with Robert Cleveland, one of our radiologists, but I don't remember on which of the studies I looked at the bones.

Q Did you ever look at the bone window on the preoperative CAT scan of February 4th?

A I reviewed all of the radiographs, I'm sure that I saw it, I just can't remember on which studies I focused on the bones.

Q Doctor —

MR. SCHECK: Your Honor, I'd like to

show Exhibit 38. Q Doctor, could you just step down for a minute and

examine this. A Yes.

THE COURT: Can the jurors all see the

matter?

Q Now, and if you want the rest of the CAT scans to orient yourself, would you not agree that Exhibit 38 is one of the series of bone window CAT scans of February 4th, 1997 before Matthew Eappen was operated on?

A That's correct.

Q All right. And would you not agree that there is virtually no swelling whatsoever, or at most slight swelling, in the right occipital area?

A Yes, it appears that way.

Q There's virtually none, right?

A That's my testimony, yes, sir.

Q So you're now of the opinion that it is somehow possible — withdrawn, let's start it this way. Your estimate is that the impact injury would have been suffered within two or three hours or six hours prior to admission to the hospital.

A I believe that the injuries that the child

suffered occurred shortly before the child was brought to the hospital. I don't think it was more than three, I doubt very strongly it was as much as six. It may have been very, very soon prior, for example, within the hour, within the half hour.

Q You're saying — within a half hour? You're

saying that the child was admitted to the hospital at 4:10, you're aware of that, right?

A I don't recall the precise time. My testimony, however, is that it was a recent infliction of injury.

Q Well, I'm only asking are you aware that the child's emergency room records indicate that Matthew was admitted at 4:10 or 4:11?

A I don't have the material in front of me, counsel.

Q Do you need the records to refresh your

recollection as you testify here; would that assist you?

A Or alternatively —

THE COURT: Would you accept counsel's representation that the admission was at 4:10 or 4:11?

THE WITNESS: Yes, Your Honor.

Q All right. And would you accept my

representation, or would you like to look at it again, that the C-T scan, the bone window that you examined, was at 5:23?

A Yes.

Q All right. So are you saying that you think that the injuries occurred in this case like a half hour prior to his admission, sometime around 3:30?

A Counsel, I have no way of knowing. But they appear to me to have been recently acquired by this child.

Q Right. Are you telling this jury, based on that explanation you gave as to the biomechanical mechanisms involved in impact, all right — and that was a biomechanical explanation, was it not, as to whether or not you'd see swelling from the impact you described?

A Yes, it was.

Q And you were relying on principles of biomechanics in your explanation as to why you didn't think you'd necessarily see swelling?

A I'm relying, in addition to principles of

biomechanics, ladies and gentlemen of the jury, on my experience in dealing with cases of child abuse which are clearly cases of child abuse; and with those many other conditions in which I consult, in which my colleagues and I believe that it is not child abuse. A number of children sustain quite severe traumas to their skulls: not all are cases of child abuse. And our practice at our hospital is to consult seriously with neurosurgeons, with orthopedists, the specialists that deal with these traumas in order to try to discern what may have happened.

Q So the answer to my question, Dr. Newberger, that you were relying in part on biomechanical principles in your explanation, is yes? A Yes.

Q Thank you. Now, you are saying, you agree, do you not, that this bone window, Exhibit 38, right, that C-T scans are better at picking up soft tissue swelling than even gross examination?

A No, I don't agree with that at all, counsel.

Q You don't think so? But you've indicated that you're not a, your expertise is not in neuroradiology.

A That is correct.

Q All right. But you know enough to realize that there is virtually no swelling whatsoever on this bone scan at 5:23, is that true?

THE COURT: As depicted in Exhibit 38.

Q As depicted in the exhibit. Can you just answer that?

A I cannot answer that yes or no —

Q Well, didn't you just answer that yes?

THE COURT: Well, if he just answered it, why did you ask it?

MR. SCHECK: Well, I'm just reestablishing it again to move on to the next point, all right.

Q You've just agreed, have you not, that there is

virtually no swelling at all of this bone window

taken on 5/23, right?

A Well, counsel, a fuller explanation is necessary

than I can give in a yes-or-no answer.

Q I just — Doctor, I know you want to explain. But

didn't you just agree, just a few minutes ago,

that there's virtually no swelling on Exhibit 38,

yes or no?

A Yes, on this exhibit, on this window.

Q Thank you, thank you. Well, do you want to look at all the bone windows on February 4th, every single image, and tell me if you can find swelling anywhere on those?

A I'm happy to try to respond to questions that you pose to me.

Q Well, I'm saying to you —

THE COURT: And we are happy to listen to questions and answers, all of us are.

Q So my question to you, sir, is: Do you believe that there, in any, in any — just so we're clear on this, I'm showing you Exhibit 37. This is what's known as the "scout film," correct?

A Yes.

Q And this is, these radial lines through the skull, right, indicate that in this instance, at about seven millimeters all the way across the head, that's what the CAT scan is showing.

A It's not quite at seven millimeters, that's the depth of the cut.

Q The depth of the cut, right.

A That's correct.

Q Right. And so what the bone window does, is that it begins at the very bottom of the soft tissue, and goes all the way up to the top of the head, and gives you a view of all the soft tissues, right, that's how these things are designed.

A Counsel, it's —

Q Is that how it's designed?

A It's not designed, no, to give a view of all of

the soft tissues.

Q Well, but I think, but as you indicated before, neuroradiology is really not your area of expertise.

A That is my testimony.

Q Now, so to sum this up, your position is, it is possible to have an injury, an impact injury, such as you've described, where the baby's head is slammed down onto a surface in the manner you've displayed to the jury, with the degree of force on the order of the child falling out of a second-story window on concrete, and there would be no, virtually no swelling in your terms on this bone window, that's your position. A Yes.

Q Now, Dr. Newberger, you've testified about impact

injuries from car accidents here. A Yes.

Q You were using that as part of your opinion as to why you would see no swelling, true?

A It was part of my explanation to the jury, yes.

Q Thank you. And, Dr. Newberger, in terms of, for example, nervous tissues, have you ever heard of anything called a free-stranding compression test?

A No, I do not believe so.

Q Have you ever heard of anything with respect to nervous tissues called a force vibration test?

A No, not to my recollection.

Q Are you familiar with the studies of the mechanical properties of the dura?

A I certainly have read studies of the mechanical properties of the dura. Q Would you describe yourself as an expert in that

area? A No.

Q Are you familiar with studies as to the tensile

properties of nerve fibers? A I've read studies of the tensile properties of

nerve fibers, but I would not characterize myself

as an expert on them. Q Right. And you haven't personally done any

original research in that area. A That is correct.

Q Are you familiar with the tensile properties of

the sclera and cornea? A Only to a very small degree.

Q Have you ever studied the whole body tolerance to impact?

A I don't think I understand the question. What do you mean by "whole body tolerance" ~

Q Well, have you ever studied anything and —

MR. SCHECK: Do we have, just a little pad that I can draw something on? I'm sorry, Your Honor. Your Honor, should I put an exhibit marker on this?

THE COURT: Well, so far, it's just a blank sheet of paper, a tabula rasa,

MR. SCHECK: A tabula rasa.

THE COURT: Well, the jurors' coffee has providentially arrived, so you'll have plenty of time to do that. We will take a fifteen-minute break, and we'll be back at twelve minutes of the hour.

(Jury out)

BENCH CONFERENCE

MR. GOOD: We wanted to raise a matter concerning sealed material Your Honor saw, the tape. I don't know if you want on the record here.

THE COURT: What sealed material?

MR. GOOD: It was a videotape that Debby Eappen made herself with her son, the sealed matter.

THE COURT: What is it being offered in

evidence?

MR. GOOD: No.

THE COURT: If it's not being offered in evidence, then there's nothing to worry about.

MR. GOOD: No. The question is ~

THE COURT: Is it being offered in evidence?

MR. GOOD: We haven't decided, Your Honor.

THE COURT: Well, when you decide whether you're going to offer it in evidence, then I'll make whatever ruling I need to make.

MR. GOOD: Could I give the Court a transcript of that now so Your Honor has had a chance to —

THE COURT: For what purpose?

MR. GOOD: So that Your Honor could review it in advance so we don't spend any more time than necessary. I'm just offering to Your Honor so that you can look at it in advance if you wish, to save time.

THE COURT: What would be the purpose of offering it? How would it be admissible evidence?

MR. GOOD: It might. Your Honor, go to credibility of Debby Eappen, to show that, that she attempted to manufacture evidence in this case, Your Honor. And that might affect her credibility. We have not made a decision whether or not to offer the evidence.

THE COURT: I'll tell you what, you think about it a little more, and when you get closer to deciding that you may wish to offer it, then you may —

MR. GOOD: That's exactly how we wish to proceed. Your Honor, but I wanted to inform you—

THE COURT: I'll read it, I'll read it. What's it about, fifteen pages, the transcript?

MR, GOOD: Twenty.

THE COURT: Twenty pages. So I think I can probably read it. I won't say that I'm an honors graduate of Evelyn Wood, but I read reasonably wel1.

MR. GOOD: Okay.

THE COURT: So when, as, and if you conclude —

MR. GOOD: That's fine.

THE COURT: And I take it, Mr. Leone has

a copy?

MR. GOOD: Yes, he does.

MR. LEONE: I just got it. I haven't

read it.

MR. GOOD: So Your Honor didn't —

HE COURT: Well, why don't we let him do his homework before I do mine.

MR. GOOD: Thank you. Your Honor.

MR. LEONE: Your Honor, are we now

excused?

THE COURT: Yes.

END OF BENCH CONFERENCE

THE COURT: All right, I'll just remind you that you're still under oath. And you may proceed.

CROSS-EXAMINATION BY MR. SCHECK, Resumed

Q Doctor, can you see this? I've written on a paper some terms. It's fair to say there's like a capital "G" and a little "x" underneath it, "acceleration"; capital "G" and a little "y" underneath it, "acceleration"; a capital "G" with a little "z" after it, "acceleration." Are you familiar with those terms?

A I'm familiar with the term "acceleration," but I've never seen "G sub-x and G sub-y and G sub-z"

before.

THE COURT: Could I see that?

MR. SCHECK: Sure. Should I mark this, Your Honor, as a chalk?

THE COURT: No, we'll wait until — this is high school physics?

MR. SCHECK: We're getting into some physics.

THE COURT: We'll wait for the examiner.

MR. SCHECK: Okay. So you've never seen that before. I said I've seen the word "acceleration"; I'm not familiar with the G's and the various sub-figures. Okay. Have — and you've never seen those terms or anything like that applied to an analysis of whole body tolerance to impact - how a body, for example, in a car crash, or some other impact situation, would respond in terms of injury. This is not my field of expertise. But you feel confident telling us that the degree of force here in this case, or the impact, is on the order of a child falling out of a second-story window onto concrete. Yes.

Q That you have no hesitation telling us, right?

A I've given my opinion, within the bounds of certain scientific certainty.

Q Well, let's talk a little bit more. Have you ever heard of something called head injury tolerance and criteria, and attempts to analyze that?

A Please define "head injury tolerance criteria."

Q Yes. Analyses of how much load would be required to fracture, for example, different bones in the head.

A Yes, I have read such studies.

Q Have you studied types and mechanisms of head injury?

A Yes.

Q Have you studied the incidents of head injury in automobile accidents?

A Yes.

Q Have you studied the mechanics of skull fractures?

A Yes.

Q Do you consider yourself an expert in fracture energy?

A Please define "fracture energy."

Q The amount of energy or load that it takes to cause a fracture in the various different bones, of levels are you asking me about, counsel?

Q Well, with respect to the loading of skull by impactors, and references to them in terms of square inch of area of impact? Is that your area of study?

A Counsel, that makes no sense to me.

Q Okay. Have you ever heard the term mechanical impedance - I-M-P-E-D-A-N-C-E - of the head?

A No.

Q Are you familiar with head injury criteria such as the "Wayne State Tolerance Curve"?

A Yes.

Q Are you familiar with the "Gadd" - G-A-D-D - "Severity Index"?

A I've read about it, I couldn't describe it in detail.

Q So that wouldn't be a area of your expertise?

A Definitely, this is not in the area of my

specialty expertise.

Q All right. Have you ever heard of something called "Head Injury Criteria," HIC?

A Yes.

Q Are you aware of that how that Head Injury Criteria, HIC, has a specific meaning in the study of impact injuries and automobile accidents?

A If it's the set of criteria that I recall, these are the standards used by the Insurance Institute for Highway Safety; by various governmental regulatory bodies in discerning and describing head impacts. And those are criteria that were developed by an inter-disciplinary group, including neurosurgeons.

Q Right. And are you, do you know if Dr. Ayub Ommaya had any role in developing these criteria?

A He may well have been one of the —

Q It's a name you know, right?

A Yes, I'm familiar with his work.

Q And Dr. Ayub Ommaya was one of the first people that did research in the mechanisms involved in whiplash injury.

A Is that a question?

Q Yes.

A I'm not aware of that, no.

Q Well, are you aware of — you know Dr. John Caffey.

A Yes.

Q And Dr. John Caffey is a pediatrician who was, wrote some of the early and most important papers

in this whole area of injury to infants, whiplash

injury to infants.

A Dr. Caffey is a radiologist, counsel.

Q A radiologist. One of the people that wrote in

this area?

A Yes, definitely.

Q And are you aware of an article that he and Dr. Ommaya wrote together describing whiplash injury in children many years ago? You're not aware of that article?

A There was an article in the late seventies that Caffey wrote with other authors, and Ommaya may have been one of them.

Q Okay. But are you aware, you know Dr. Lawrence

Thibault, of course.

A Thibault, if I'm not mistaken, was a junior collaborator with ~

THE COURT: No, no, you —

A ~ Dr. Duhaime at the University of Pennsylvania.

THE COURT: No, no. Doctor. The question is really simple: Do you recognize the name Dr. Thibault?

THE WITNESS: Yes. Yes, Your Honor.

Q Now, when you're sitting there and you pensively

say, "Oh, Dr. Thibault is a junior collaborator with Dr. Duhaime," that's what you just said, right?

A That's exactly what I just testified to.

Q Right, okay. Now, you're aware, are you not, that the article by Duhaime and Thibault on so-called shaken baby impact, has been discussed in this tri al.

A I'm not aware of that, no.

Q You're not aware of that?

A I've not watched any of the testimony in this trial.

Q And we'll discuss it in a minute, but you rely on that article for much of your testimony here today.

A No, that's not so, counsel.

Q Didn't you specifically rely on that article for your opinions with respect to shaking when you testified in the grand jury?

A I certainly mentioned the article in my grand jury testimony, if I recall correctly, just as when I addressed the jury before and explained in response to counsel's question, the mechanism of the brain injury that he —

Q Now, you —

A The Duhaime study was the one in which the baby doll was fitted out with a hinge and a transducer.

Q Now, you're really sure that Dr. Duhaime was the senior person and Dr. Thibault was the junior person in terms of the production of this article.

A I've read this article, counsel. And my recollection is that Dr. Duhaime was the neurosurgeon who was the first author of the article. And she collaborated with this Dr. Thibault, if I'm not mistaken, in the designing of the hinge and the way to measure the traction forces that would be measured on a doll, and analogized to the human brain. So Thibault, as I recall anyway, was not a clinician with the experience of Dr. Duhaime, who formulated the questions and the very provocative and interesting conclusions of that article.

Q Doctor, when you're giving this explanation here about the collaboration between Duhaime and Thibault, and your characterization as Dr. Thibault as the so-called "junior collaborator," are you just speculating about that, or are you really testifying here on the basis of any true personal knowledge?

A Well, I am neither speculating nor testifying on the basis of true personal knowledge. I read this article with interest. This article is frequently brought up in discussions of shaken infant —

THE COURT: I think you've answered the question.

Q So the answer to my question is, is that you're not really testifying here then on the basis of your own personal knowledge of their collaboration, but just based on what you think must have been their relationship from the reading of the article.

A And I'd add one other factor, counsel, and that is that I've done multiple, interdisciplinary studies of child abuse, including its medical —-

Q I'm only asking about your knowledge of Duhaime and Thibault. So the fair statement is that you made all these statements to the jury about their collaboration, and calling him the "junior collaborator," based on your reading of the article.

A Based on my understanding of, from the article, the collaboration between a neurosurgeon, and an expert in biomechanics.

Q Do you know that Dr. Thibault, at the University of Pennsylvania, was running a laboratory and a program whereby he teaches neurosurgeons and other doctors about biomechanics, do you know that?

A I do not know that, no.

Q Do you know if Dr. Duhaime was actually a student

of Dr. Thibault's when she wrote this paper?

A I do not know that.

Q Do you know if Dr. Thibault and Dr. Duhaime, together, went and evaluated a whole series of autopsies and records at the University of Pennsylvania in order to design the study?

A That's what they published in their article.

Q All right. But if Dr. Thibault was, in fact, the teacher of the biomechanics, and Dr. Duhaime was taking this course from him, and this was her first paper, would that change your assessment as to whether or not Dr. Thibault was the, quote, "junior collaborator"?

A No.

Q Okay. Do you believe it was Dr. Duhaime or Dr. Thibault who had the primary input into designing the doll with the electrical impulses implanted in the shaking experiment?

A I don't know that, counsel, that was not reported in the article.

Q Now, do you know if Dr. Lawrence Thibault has had any role in evaluating this head injury criteria that you do know about which is used in the assessment of impacts in automobile crashes?

A I do not know that.

Q Do you know if he is an advisor to — do you know — you're familiar with the organization, the Center for Disease Control.

A Yes.

Q You know that within the Center for Disease Control there is a department on injury prevention.

A Yes, I'm a consultant to that department.

Q And are you familiar with the work that has been

done in that department over the last ten years

with respect to head injuries?

A Yes. I've been involved with that department

since its inception.

Q And you are, and you don't — are you aware of Dr.

Thibault's role in that department?

A No, I'm not.

Q Are you aware of any grants that he has had? A No.

Q Has the prosecution shown you any documents in

regard to grant applications and studies that Dr.

Thibault has been doing with respect to the head

injuries to infants?

A I don't recall receiving such documents from the

prosecution, no.

Q Okay. Now, and you've never advised the automobile industry or the Government with respect to impact injuries for adults or children in automobiles.

A Well, as a matter fact, I have.

Q You have.

A I've been a reviewer of grants for the Center for Disease Controls' Injury Control Program. I've reviewed multiple applications for funding for studies of ways that those impacts can be measured and controlled. And in the seventies, I had a fairly extensive contact with the Insurance Institute for Highway Safety because I was interested in injuries and their impacts and especially, I've had a career interest in discerning injuries which are abusive from injuries which are not.

Q And you're not familiar with Dr. Thibault's work in the area of automobiles.

A Well, as I said, I've read this publication. I'mnot familiar with his —

Q Other than the shaken baby impact article -­

A No.

Q — you're not familiar with any of his other work.

A That's correct, yes.

Q And you're not familiar with Dr. Ommaya's other

work, in the area, for example, of automobile

safety and impacts, are you? Just yes or no, or as best you can, but brief.

A The other study of Dr. Ommaya's that I recall is a study in which he, if I recall correctly, tried to analogize —

Q Are you just familiar with his work?

A I beg your pardon? Well, you asked me about other studies of Ommaya's that I —

Q I'm just asking you, yes or no, are you familiar with other studies in the area of automobile and impact?

A Right, that was I was about to say. That he did a study using chimpanzees —

Q Right.

A — and, but I don't —

Q So the answer is yes, you're familiar with some of

the animal studies that were done?

A The animal studies, the impact studies of rapid piston against a chimpanzee's head was one of the studies in which he tried to analogize to automobile accidents.

Q Well, these animal studies and other studies, other modeling studies, became the basis of designing safety measures for automobiles; you're aware of that, aren't you?

A Well, not "the basis," counsel, but they are among the many studies that have been used in a national concern for vulnerability of the central nervoussystem to crashes of automobiles.

Q Well, you're not, by describing this animal study, you're not in any way as a scientist, in any way devaluing the importance of doing those studies, aren't you?

A Not in the least.

Q They're very important, aren't they?

A I can't comment on their importance relative to other studies, but I do not mean to devalue their importance. That's my testimony.

Q Now, have you heard of - you've heard of any head

injury criteria — have you heard of the Vienna

Institute Index?

A No.

Q Have you heard of Effective Displacement Index?

A I beg your pardon, which?

Q Effective Displacement Index, EDI?

A Perhaps you could define "effective."

THE COURT: No, the question is have you ever heard of it.

Q Have you ever heard of that term?

A Well, each one of those words has meaning, and I don't know —

THE COURT: Excuse me, I think it's very simple. Have you ever heard of the Effective Displacement Index, or EDI, as such?

THE WITNESS: I don't believe so, Your Honor,

Q All right. Have you ever heard the term "Mean Strain Criterion"?

A I do not believe so.

Q Have you ever studied the criteria for angular acceleration?

A I recall, if I'm not mistaken, in the study that Ommaya did of chimpanzees, he was trying to distinguish between deceleration in one linear plane —

Q Is that study —

A — from angular deceleration and —

Q Right, the importance of the difference between translational force and rotational force, correct?

A That is correct. And I believe that that was the concept that he used to make the distinction,

Q Right. And you understand that rotational injury and impact, in terms certainly of children, is content to cause the tearing of bridging veins more readily than translational force.

A No, that's not by any means true.

Q That's not your understanding?

A That's not my belief, it's not my reading of the literature, and analogizing from chimpanzees and woodpeckers to children's head is highly speculative in my view, highly speculative.

Q I didn't ask you that. I asked you about rotational forces and translational forces.

A That's exactly correct.

Q All right. Have you ever examined any

mathematical models of the head in terms of impact injury?

A I don't understand the question. Is it —

Q Have you studied, in terms of human tolerance to

injury, any mathematical models of the head?

A Yes.

Q Have you studied linear impact models?

A Well, I've read some of the literature in which these models are offered, yes.

Q Have you studied non-symmetric impact models?

A I cannot recall specifically.

Q All right. In terms of impact tolerance and injury criteria of the neck, would you consider yourself an expert in that area?

A Please repeat the question.

Q In terms of impact tolerance and injury criteria for the neck, do you consider yourself an expert in that area?

A Well, I've seen many injuries of the neck ~

Q I'm merely asking you if you consider that an area of your expertise. Doctor.

A I consider myself an expert on injuries, and I've seen many injuries to the neck. But with regard to the specific criteria that you mentioned, I don't recognize those names.

Q Right. I mean, specifically, would it be fair to say that you do not, you have not done any research specifically in trying to measure the impact tolerance and injury criteria for the neck?

A Yes.

Q That's a fair statement.

A It is fair to say I have not done research about that.

Q Okay. And would you consider yourself an expert in the ranges of neck motion?

A Please define what you mean "expert."

A Well, have you studied it specifically, quantified it for children, for adults, in any systematic way? Is that an area of your expertise?

A No.

Q What about the strength of the neck, have you

studied that in any specific quantified way?

A No.

Q All right. Have you studied in any specific quantified way injury to the cervical spine?

A No.

Q Whiplash?

A Do you mean in any specific and quantified —

Q Yes.

A Myself, by studies that I've conducted? No, the answer is negative.

Q All right. In terms of injury tolerance levels to the neck, have you made any specific studies of the tolerance of the neck inflection?

A "Inflection" as opposed to extension?

Q Exactly.

A No.

Q We'll get to extension next. Have you made any specific studies of the tolerance of the neck in extension?

A No, I have not.

Q Have you made any study of the dynamic response

corridors to the neck? A I beg your pardon, what is the word — Q Dynamic response corridors for the neck. Does that phraseology or area of study ring a bell to

you?

THE COURT: What is that word that starts with, is it corridors?

MR. SCHECK: Corridors: C-O-R-R-I-D-O-R-S, corridors.

A I don't understand the concept, counsel, please

explain it to me.

Q Well, so the point is that that is a term or a concept with which you are not familiar, right?

A No, I'm very familiar with the concept of corridor, I don't know what it means in this

context. Explain it and I'll give you a response.

Q Have you ever heard of a book known as the "Handbook of Human Tolerance"? And let me hand

that up to you. And you can please examine that

and the table of contents. A Well, this is a photocopy of a book published by

the Japan Automobile — Q No, Doctor —

THE COURT: No, Doctor, Doctor —

A I have not seen it before.

Q Well, so do you know of a Dr. James McClehenny?

A No.

Q Or any of his work or studies?

A No, not to my knowledge.

Q Do you know a Dr. Vern L. Roberts, or any of his

studies?

A No, counsel.

Q All right. Or Doctor, a Mr. Joseph Hilliard?

A Not to my knowledge, no.

Q All right. So it would be fair to say that — so you wouldn't know whether or not there is, in fact, a handbook that has been created to measure, using principles of biomechanics and specific study, the tolerance of different bones, tissues of the human body, to impacts of different kinds. You didn't know such a book existed.

A Counsel —

Q Did you know such a book existed?

A I've never seen before the book, the photocopy of the book that you are holding in your right hand.

Q Fine.

A I've never seen that book before.

Q Have you ever heard that there were biomechanical studies where biophysicists, and others, actually measured tolerance criteria for when bones break, tissues break, et cetera, at different impacts?

A Yes.

Q So you knew that kind of systematic study was going on.

A Yes, and I wrote the chapter —

THE COURT: All right, the answer is

"Yes."

THE WITNESS: I beg your pardon, Your Honor.

Q: So the answer is "Yes."

A: Rephrase the question, I want to be sure that I'm giving —

Q: So you are aware that there are specific studies being done by people who are trained and have expertise in the area of biomechanics, whereby they will measure head injury tolerance and criteria, neck injury tolerance and criteria; you're aware that such studies go on.

A:Yes.

Q:And you're aware that those studies are specific

and quantitative.

A:Yes.

Q:And that they measure things such as velocity of

impact.

A:Yes.

A:Now, Doctor, would you know how to measure the velocity of impact of ~ withdrawn, let me start again. When you say a child, when you talk about a "second story window," Doctor, are you implying a height of what, fifteen feet, eighteen feet?

A: Well, specifically —

Q: I'm asking you a specific question; can you answer

it. When you said to a grand jury considering this case, and to this jury today, that the degree of force and the impact here was on the order of a child falling out of a second-story window onto concrete, you have that statement in mind, do you not? A Yes,

Q Okay. I'm asking you a specific question about that statement. When you said "second-story window," what height did you have in mind, fifteen feet?

A Yes, approximately. Q Higher than that? A Perhaps.

Q How high would you go? A Perhaps to eighteen feet.

Q Would you know how to measure the velocity of impact of a weight falling from a height of fifteen feet onto concrete? Would you know how to do that?

A Yes, I forget the exact formula, but it's

certainly written in physics' textbooks. It has to do with increase in seconds per second, but I don't recall the precise formula.

Q Would you know how to measure the force involved?

A Yes, I would be able to estimate that if I had the

formula in hand.

Q Would you not agree that the velocity of impact

from a fifteen-foot drop height, would be

something on the order of twenty miles an hour?

A At the point of impact, it could well have been

twenty miles an hour, yes.

Q And when you're talking about concrete, right, are

you familiar with the concept of stopping

distance?

A Yes.

Q And what is that concept, what is stopping distance?

A Well, stopping distance is the term that's used in the automobile industry to refer to a weight that is traveling at a certain velocity. And obviously this is used more specifically with automobiles, when brakes are applied how fast it's possible for that weight or that automobile or that train to stop. That's the concept as it's used in this field.

Q Well, that may be something about brakes, I'm trying to ask you, Doctor, in terms of basic principles of biomechanics and physics, would not stopping distance have a particular meaning when trying to measure the impact of a fall from a height of fifteen feet onto concrete? Does the term "stopping distance" have any meaning to you?

A I was giving my understanding of the concept of stopping distance.

Q Well, wouldn't the concept of stopping distance have something to do with when a weight falls, a mass falls on a surface, these surfaces may diffuse energy in different ways, right?

A That's correct.

Q And when you're talking about concrete, there is going to be relatively little diffusion of energy upon impact, when something falls on it, for example, from a height of fifteen feet.

A No, that's not so at all.

Q Well, have you ever heard of the concept of

stopping distance in connection with falls from drop heights?

A Yes.

Q Okay. Now, Doctor, it's still your testimony, I take it, that a velocity of impact of twenty miles an hour, the child falling out of a second-story window - and we'll use fifteen feet instead of eighteen, right - onto concrete, that that velocity of impact you agree might be on the order of twenty miles an hour, right?

A Yes. I don't know the precise mathematical

formula as I've testified, but yes, it could well have been twenty miles an hour at the point of impact.

Q And you don't think that a child's head falling, with a velocity of impact of twenty miles an hour onto concrete, you don't think that that child's, the skin from that child's head would swell?

A Counsel —

Q Do you agree with that?

A No.

Q Yes or no?

A No, not at all, not necessarily.

Q You don't think that that velocity of impact of a child's head hitting concrete at a velocity of impact of twenty miles an hour would cause soft tissue swelling.

A Counsel, I never testified that this chid fell

from a second-story window onto concrete. You're distorting the testimony that I've —

THE COURT: Easy, gentlemen, break and go to a neutral corner.

MR, SCHECK: Your Honor, I don't want to distort anything.

THE COURT: Just question-answer, question-answer. Argument, some other day.

Q Doctor, let's be clear. You told this jury in no uncertain terms I take it, and you stand by it, do you stand by this statement, that you believe that the impact injury in which case was of a nature that the child could have been held above the head, and slammed down onto a fixed hard surface, and that the degree of force would be on the order of a child falling out of a second-story window onto concrete?

A That is my testimony.

Q And you think that such an impact would not cause

splitting of the skin.

A It need not, counsel.

Q But, Doctor, would you not agree that you are not

an expert on biomechanics?

A I most certainly would agree.

Q And would you not agree that biomechanics would be the appropriate discipline to measure velocity of impact, amount of force, in a precise and scientific way?

A Yes.

Q Now, you also said, I believe on direct

examination before, when you were telling us why you would not necessarily expect to see swelling here, you recall that testimony you gave before?

A Yes.

Q And one of the things that you said, I believe, is that the heart — well, it takes time for swelling to develop, there may not be the usual inflammatory process that cause soft tissue swelling, the heart may not be pumping right, blood may be lost; do you remember saying that? A Yes.

Q Now, are you familiar with the blood pressure

readings taken by the EMT people at the time that Matthew Eappen was taken from the Eappen home to the hospital?

A I do not recall precisely what they were, but I

recall reading them, yes.

Q All right. And are you familiar with the blood

pressure readings at the hospital upon admission?

A My testimony is the same: I recall reading them.

but I don't recall what they were precisely.

Q And you're aware, are you not, that one of the immediate findings here is that Matthew was suffering from increased intra-cranial pressure?

A Yes, that's correct.

Q And swelling of the brain.

A That's correct.

Q All right.

A And bleeding within the brain as well.

Q Now, Doctor, in terms of the blood, the heart pumping appropriately, right, isn't it true that the EMTs found no problem with Matthew's heart rate or blood pressure?

A I do not recall that they found "no problem."

Q Wasn't it normal?

A I do not recall.

Q Within normal limits?

A I do not recall.

Q All right. Same finding at the hospital, do you

know what the findings were —

A That's my testimony, counsel. I read the documents, but I do not specifically recall. If you care to show them to me, I'll try to give a

precise answer.

Q Well, without that specific knowledge, you still had no hesitation telling this jury that the reason that there might not be swelling is that maybe his heart wasn't pumping right.

A No, that wasn't my testimony, counsel. My testimony was that there may have been a substantial amount of loss of blood into the child's brain and the spaces around the child's brain which affected the amount of blood that was available to be expressed into the soft tissues. That that may have been one reason why there was not as much soft tissue swelling here as there might be in another setting.

Q Doctor, didn't you just tell the jury that his heart might not have been pumping right?

A I forget the exact words that I used, but that was one possibility that I included in my explanation to the jury.

Q Didn't you tell that to the jury a little before the break; and just a few seconds ago to me, you agreed, you said "the heart might not have been pumping right."

A Yes, that is correct. That's it's entirely possible that —

Q So the answer is yes.

A Yes.

Q Okay. But, in fact, when you made that statement, you didn't know, you had not in your mind the specific data about how his heart was pumping when the EMT people took him to the hospital or when he was first at the hospital, right?

A Counsel, the question to me posed —

THE COURT: No, excuse me. Answer the question, please.

A Please reformulate the question.

Q Sure. When you told this jury one of the factors here may have been that his heart wasn't pumping right, that you did not have in your mind any specific values as to how his heart was, in fact, pumping according to the people that, the EMT who brought him to the hospital and his blood pressure at the time of admission?

A Yes, that's correct, counsel.

Q Now, Doctor, why don't we move to the issue of shaking.

You are of the opinion that the only way that Matthew Eappen could have gotten injuries like this, is for him to have been held by an adult and violently shaken back and forth, right?

A No, that wasn't my testimony. I believe that this child was violently shaken back and forth by an adult. And, as well, his head was impelled against an unyielding object.

Q Well, let me be clear. That you, it is your position that the injuries are not explained on the basis of a fall alone. "You don't get injuries like this from a fall from a window; it's impossible in my opinion."

A Yes.

Q You're clear on that. So we're talking, we're moving from injuries from impact and we're now talking about shaking, right?

A Yes.

Q All right. And it's your opinion that an impact

alone could not account for these injuries. A Yes, that's my opinion.

Q But you are also saying that there has to be

shaking.

A Yes.

Q All right. And in terms of the shaking, the only way that the injuries, right, could have occurred from shaking, is for the child to have been violently shaken back and forth, right?

A Yes, that is my testimony.

Q And by "violently," you're talking about the head

going back and forth uncontrollably.

A By "violently," I'm referring to the actions of the adult who caused the injury.

Q Well, as part of the mechanism, are you not

postulating, are you not telling us that the head,

during the shaking, would have to be going

uncontrollably back and forth? A Yes.

Q Okay. And is it not your position that this shaking, that the head going uncontrollably back and forth, would take at least a minute?

A Is that the question before me, counsel?

Q Yes.

A As I testified ~

Q Can you answer that?

A Yes, I can answer that.

Q And your answer is "yes"?

A No, the answer is not simply a yes. The answer is

Q So the answer is not yes?

A — the aggregate —

Q You can't answer that yes or no?

A That's correct.

Q All right.

MR. SCHECK: Counsel, page seventeen of

the grand jury testimony.

Q And, Doctor, you testified in front of a grand

jury in this case?

A Yes, I did.

Q And, on March 5th, 1997.

A Is that a question?

Q Yes. Was it on March 5th, 1997?

A If that's the date, and it's true, yes.

Q And you, in addition, there was a District Attorney involved in the case then named Lynn Rooney, correct?

A Yes.

Q But after your presentation, the grand jurors had a number of questions for you, do you recall that?

A I think there were two or three questions, I don't believe it's fair to characterize it —

THE COURT: That's a number.

A — as a "number."

Q Now, do you recall —

MR. SCHECK: Starting at the bottom of page seventeen.

Q — that one of the grand jurors asked you after

you described your, that you described "impact and shaking," a grand juror asked you:

Question: "According to your scenario, how many

minutes would this whole action take?"

Answer by you: "Do you mean the shaking itself?"

Question by the juror: "Yes."

Answer: "I would say, again, you know, nobody has really studied this."

Question by the juror: "Right. But going by how you're perceiving it."

Answer by you: "But, I mean, you know, it's funny that you mention it, but I'll tell you my opinion. But I also want to mention the study that was, that was done by a neurosurgeon in Pennsylvania."

And here, I take it you're referring to the Duhaime-Thibault study, correct? Well I'll read a little further and we'll see if that refreshes your recollection.

"I'll tell you my opinion, but I also want to mention a study that was, that was done by a neurosurgeon in Pennsylvania. I think it took at least a minute. A minute is a long time, but I'm talking a long, long time of very violent shaking, as well as other assaults that would have had to have taken place in order to produce the head trauma and neck injury."

Do you remember that?

A Yes.

Q And that "study" you're referring to was a study

by Dr. Duhaime and Dr. Thibault.

A I want to give you a precise answer here, counsel.

The –­

THE COURT: Well, is this another Pennsylvania?

THE WITNESS: Yes, there is, Your Honor, that's it. And I can't recall whether —

Q Well, let me read a little further and see if it refreshes your recollection.

"There was" — and I'm continuing now right after it — "there's been one study by a neurosurgeon named Duhaime who works at the University of Pennsylvania School of Medicine, in which they estimated the 'traction forces', as they call them in cases of shaken baby syndrome, by taking a doll, a baby doll, about the size of a six-month-old baby, if I recall the study correctly, and fitting it out with a neck hinge that enabled measuring forces that would go back and forth as the baby would be shaken."

Does that refresh your recollection that you were referring to the Duhaime-Thibault study now?

A The question for me, counsel, is which of Dr.

Duhaime's publications has Duhaime as a co-author; and I cannot recall precisely. If you want to show me the studies, I will give you a precise answer to your question.

THE COURT: No, the question, just so we all keep our focus, is on what you meant when you said in your testimony to the grand jury, that there had been a study by a neurosurgeon in Pennsylvania. That is where we are at.

Q When you were giving this testimony — first of all, you told the grand jury that, in your opinion, the shaking took at least a minute, right?

A Yes.

Q Do you stand by that?

A Yes.

Q So you're telling us that there was this violent shaking with the head going back and forth uncontrollably, in your judgment, all told, for about a minute. A Yes, all told, about a minute.

Q And when you were telling the grand jury the basis for your opinion, and in fact, when you told this jury today, you were relying upon the study where the doll was hooked up and was shaken and measurements were taken, right?

A No, not at all, counsel, that's not "the" basis for my opinion.

Q Well —

A And as I mentioned in my grand jury testimony, when I mentioned it as an aside, in addition —

THE COURT: No, excuse me. Just the answer, not the footnote.

THE WITNESS: Thanks, Your Honor. A It was not —

THE COURT: No, no.

THE WITNESS: I beg your pardon, thank

you.

Q Now, why don't we read it all then. Doctor, and then you tell me whether or not you were relying in your opinion before the grand jury on this study, your estimate as to how long the shaking would take, okay?

THE COURT: I think not.

MR. LEONE: Objection.

THE COURT: The objection is sustained. Essentially, I think what Mr. Scheck is asking is: What was the basis for your conclusion that the shaking had taken a minute? Now, if Mr. Scheck is not asking that question, he has my leave to say he is not, and then he can put his question in his own way.

MR. SCHECK: I'll try it a little differently, Your Honor.

Q Did you not tell the grand jury that, based on this article, that the traction forces associated with the shaking — withdrawn. Did you not tell the grand jury that it is actually believed and comes across in this article, that it takes a lot of shaking to create an injury like this, and the authors of the article, you speculate, that serious cases of shaken baby syndrome are probably not explained by shaking alone —

THE COURT: Slow down, Mr. Scheck.

MR. SCHECK: All right.

THE COURT: For Ms. Goldberg's benefit. MR. SCHECK: I'll withdraw that question. Let me start it a little differently.

Q Your — you referred on your — are you not relying in part for your opinion as to how much shaking must have happened here, on this study by Dr. Duhaime, where they used the hinge on the doll?

A No.

Q You're not relying on that?

A Correct. I used it to illustrate —

THE COURT: No, no, your answer is complete.

THE WITNESS: Thank you, Your Honor.

Q You're not relying on it. Now, do you recall

being asked by a grand juror, after you made your demonstration of shaking, the grand juror asked you: "In your demonstration of how hard" —

MR. LEONE: Could you please refer to the question and answer?

MR. SCHECK: Sure.

Q Question by the grand juror —

MR. LEONE: If you could just refer to the question and answer in the grand jury minutes.

MR. SCHECK: I will, I'm doing that. Page twenty, line five, question, I'm reading. Do you recall this question and answer. Doctor.

Question by the grand juror: "In your demonstration of how hard the baby was shaken, I guess being non-medical, I can't conceive how a neck wouldn't break or something with that massive shaking. I mean, even in a car accident, you get bone damage or something from one sudden impact."

Answer by you: "Well, you probably, you heard the medical examiner I'm sure. The medical examiner did not find any injury, any signs of bone injury. And in virtually all cases of shaken baby syndrome, you don't see bone injury. I suspect that it has something to do with the way the neck is constructed. That nature has given us the ability to move our neck without fracturing bones. But the point you make is exactly right, yes, ma'am."

Do you recall being asked that question and giving that answer?

Q: Yes.

A: Now, I take it it is your opinion that the violent shaking back and forth for at least a minute all told, with the head uncontrollably snapping back and forth, would not likely break a neck. A Correct.

Q Would not cause any damage to the ligaments of the

spinal cord.

A Correct.

Q Would not cause any damage to the bony sections of

that spinal cord.

A Correct.

Q Would not cause any displacement of the vertebrae.

A Correct.

Q Would not cause any injuries to the muscles of the neck.

A Correct.

Q So, and in accordance with this answer, I take it to the grand juror, the reason for this is that you, quote, "suspect that it has something to do with the way the neck is constructed, that nature has given us to move our neck, have the ability to move our neck without fracturing bones." You stand by that?

A That is my testimony.

Q But you do agree, Doctor, that you have not made, as a biomechanical matter, a specific study of tolerance criteria for neck injury.

A That is correct.

Q Or tolerance criteria for injury to the cervical spine.

A Correct.

Q Now, Doctor, this case is not the only case where you have given similar testimony about such violent shaking.

A Is that a question?

Q And the absence of injury to the neck or the spinal cord.

A I'm sorry, I don't understand this to be a question..

THE COURT: Start again.

Q This — when you believed from the — withdrawn.

Okay. Did you not tell the grand jury that, in

your opinion, the shaking here would have to be a

frenzy, done in a frenzy?

A Please quote what it is that you're asking me,

page and line, please.

Q Page fifteen, line three. In reference to — okay, start, actually start on page fourteen.

"Because this was a fresh hemorrhage found at autopsy, what this means is that, as part of this assault, this baby's neck was squeezed hard in order to create a hemorrhage within the muscle. What that suggests was that in this assault, what you really have to see is a kind of frenzy in my view, in other words, the shaking would have to have been sustained and violent, and to have included a very substantial impact to the back of the head." Did you say that?

A Counsel, you've selected a portion of what I think was a longer response and you've omitted the question from the prosecutor. And what I would respectfully ask is that you repeat, with the question, my entire response.

Q Doctor, I must tell you, your answer goes on for three pages and embraces a lot of different things. Let me see if you can answer the question with a bit more specificity. I'll try to make it simple.

A Thank you, counsel.

Q And that is, did you not tell the grand jury that your view of this shaking was that, "it was a kind of a frenzy"?

A Well, once again, I'd to ask you please to —

THE COURT: No.

A — quote by words because I can't —

THE COURT: Excuse me. Doctor. Unfortunately, one has to respond to the questions as they are put. Now, please do so.

THE WITNESS: Thanks, Your Honor.

A I can't respond to the question without a quotation.

Q And did you not tell the grand jury —

MR. SCHECK: Page fifteen, line nine, Mr. Leone, the following line.

Q — "that as part of that in some way, that kid's neck was grabbed and possibly he was in that setting that the child's neck was grabbed and banged against the wall. I wasn't there obviously, but this is the sort of thing that you have to think about in the kind of work I do."

A Yes.

Q So there you're telling us that you think that Matthew Eappen's neck would have had to have been grabbed here.

A No, that's not my testimony, counsel.

Q Okay.

A What I was referring to in the medical examiners' THE COURT: Doctor. THE WITNESS: Pardon me.

Q Now, do you recall —

MR. SCHECK: Page twenty-three.

Q — being asked this question by a grand juror and giving this answer. By the grand juror, this is after your description of shaking, if it rings a bell: "So, therefore, the marks here wouldn't have, this child wouldn't have been held by the neck and shaken, that wouldn't explain it?"

Answer by you: "No, I don't think, I don't think that the child

Question: "That wouldn't have given you the snapping?"

Answer: "Right. I think that the child was not held by the neck. Had the child been held by the neck and moved back and forth, I don't think that the injuries you could see here would have occurred, that it required this kind of traction force back and forth," You recall that? A Yes.

Q So I take it that your position is that the child

wasn't held by the neck and shaken.

A The child was not, in my opinion, held by the neck and shaken.

Q Now, Doctor, you noted that, I think you testified on direct as to "shearing injury," didn't you?

A You'll have to be more specific, counsel.

Q Didn't you testify to this jury about what's known as "shearing injury" in the substance of the brain?

A The reference that I made in my explanation to the jury to "shearing," was not with regard to shearing injury to the substance of the brain. It referred to the shearing of blood vessels that penetrate the dura, the dense lining of the brain, which may be sheared in the course of the back and forth movement of the brain within the cranial vault.

Q Doctor, actually, we've had a lot of testimony

here about some of these things. So — withdrawn.

THE COURT: Just put a question and let's have an answer.

Q You're just talking now here about factors that would tear the bridging vessels, right? Were you just referring to the bridging vessels that go through the arachnoid and dura, bridging vessels?

A I was not referring only to bridging vessels, no.

Q All right. Let me just ask you as specifically as I can and try — are you saying that this baby was shaken in such a way that there was shearing injury within the substance of the brain?

A No, that's not my testimony.

Q All right. So you're not saying that there's anything here called "diffuse axonal injury."

A No.

Q All right. Have you studied the neuropathology

findings in this case?

A Yes.

Q And you're aware that the neuropathology findings do not corroborate any shearing within the substance matter of the brain or what's sometimes referred to as "diffuse axonal injury."

A I've read the neuropathologist's report, Mr. Scheck. I do not recall specific mention of presence or absence of shearing injuries.

Q Well –

­A If you want to show me the report, I'm happy to respond.

THE COURT: No, no.

Q You do note from reading your report. Doctor, that there is, there was evidence of global hypoxicischemic injury.

A Yes.

Q From severe anoxia.

A Yes.

Q And that that was part of what caused brain

swelling here.

A Yes.

Q Now, sometimes MRIs are done to try to rule out whether damage is caused by diffuse axonal injury or hypoxic ischemic injury.

A Is that a question?

Q Yes.

A I'm not sure I understand the question.

possibility, if that really happened, that there would be what's known as diffuse axonal injury in the substance of the brain.'

A Counsel, I'm not a neuropathologist. It's my understanding that there can be, but there need not be.

Q Do you know, do you recall that Dr. Carolyn Robeson, the neuropathologist working on this case, actually proposed on February 6th that an MRI be done?

A I don't recall that, no.

Q You don't recall that from your review of the

records?

A I don't recall that, no.

Q Now, ordinarily, MRIs are done on these child abuse cases even when the baby is in serious condition.

A No, they're not done as a matter of routine.

Q Okay. Now —

THE COURT: I think we'll take a five-minute in-Court break silently.

(Brief pause in the proceedings.)

Q Doctor, the last few questions on the issue of

shaking. I think as you described it, an infant's

Q Well, in the course of your work in the child abuse study at Children's Hospital, are there times when neuroradiologists will propose to do MRIs?

A Yes.

Q And sometimes MRIs are proposed so that one can get more information about exactly the nature of the injury to the brain.

A Yes.

Q . And the at least one minute of shaking that you are telling us occurred here, would raise the head, in Matthew's case, is comparatively heavy.

A No, the ~

Q Let me start it this way. You described to the jury this shaking experiment, where the head was placed on a hinge, do you recall that?

A Yes.

Q And wouldn't it be fair to analogize they used all kinds of different hinges in this experiment, did they not?

A As I recall, yes.

Q All right. And the, what's going on here is that there's a comparatively heavy weight that's the head, and a comparatively, and they used different kinds of hinges to see how the hinge would respond when the head was shaken back and forth.

A Yes, I recall they reported that in one of their papers,

Q And in your conception of how this works: that we have a comparatively heavy weight that represents the head, and we have this hinge. And when the violent shaking happens, the heavy weight snaps back and forth. That's what's going on in shaking, as you describe it.

A No, counsel. We are human beings. The experiment was done on a doll fitted out with various hinges.

Q Right.

A My testimony with regards to the head had to do with the disproportionate size of the head in relation to the rest of the body, that an infant has compared to adults. An infant's head is quite substantially larger in relation to the rest of the body than our heads are in relation to ours. And when the infant is shaken violently, the head goes back, uncontrollably, back and forth and injures the brain. That was my testimony.

Q Right. Now, and you analogized it in part and discussed that experiment, right?

A I mentioned the experiment by way of drawing

emphasis to the significance that attaches in my view to the concomitant occipital fracture. That what that shows, this is the explanation that I gave the ladies and gentlemen of the jury, is that I was concerned —

THE COURT: No, no. Mr. Scheck asked the question, Doctor. Just answer his question. THE WITNESS: I beg your pardon.

Q Now, Doctor, you are familiar with retinal hemorrhaging in child abuse cases.

A Yes.

Q And you have some familiarity with the differences

between different kinds of retinal hemorrhages. A Yes.

Q And I'd like to just ask you —

MR. SCHECK: Showing Exhibit W.

Q Do you not recognize this to be a copy of the drawing made by Dr. Diamante of the retinal hemorrhages observed on February 4th? Why don't you take a look at this while I set up the easel.

A Yes.

Q And would you not agree, Doctor, that by drawing what these are, are what's sometimes called "flame hemorrhages," is that not right? A Yes.

Q And –

­MR. SCHECK: Your Honor, I'd like to mark another schematic —

THE COURT: That can be AA for Identification.

(Chart, as above, received and marked AA for Identification.)

Q Doctor —

MR. SCHECK: Can I display this to the jury, Your Honor?

THE COURT: Yes.

Q Now, Doctor, looking at the schematic and I'll also show you the document. You're familiar with an article by David Taylor, a review piece called "Fundus Hemorrhages in Infancy"?

A No, actually I haven't seen this article before.

Q Let me just, I'd direct your attention to this

schematic. Would you not agree, Doctor, that what we have displayed here is pictures, as one would observe them in the fundus scope, of different kinds of retinal hemorrhages?

A Yes.

Q And that the box in the middle represents

different layers of the retina. A Yes.

Q And that, illustrated at the very top are

different kinds of what is going on in layers of the retina for each of these different pictures.

A No, I've not seen this before and I will not accept that description.

Q Well, all right. Let's try this. Would you not agree that what you've just told us, these flamed-shaped hemorrhages, are what is depicted by the arrow here under "preretinal and vitreous"?

A Not necessarily, no.

Q But you see that shape there?

A Yes.

Q All right. What appears to be cone-shaped?

A Yes.

Q See where I'm pointing? Isn't that similar to the kind of flame shapes that we see here on Exhibit W?

A Very roughly similar, counsel. But the response

to your question remains negative.

Q Well, you previously agreed, these looked to you

like flame-shaped hemorrhages.

A These are highly schematic drawings by the

ophthalmology fellow.

Q Just a second ago, didn't you agree that these

were flame-shaped hemorrhages?

A No, I did not.

Q You didn't say that?

A That was not the question, that was not my response.

THE COURT: All right, all right. The jury will remember what was said.

Q Okay. Would you not agree that superficial

retinal hemorrhages are splinter or flame and originate from the superficial capillary bed or superficial radial peripapillary capillaries?

A I do not know, counsel.

Q Would you not agree that such flame-shaped

hemorrhages usually clear rapidly even within a few days?

A No, I would not agree.

Q Is this. Doctor, this isn't an area of your expertise?

A That's correct, I'm a pediatrician, I'm not an

ophthalmologist.

Q Okay. Now, you observed the CAT scan on February 4th taken of Matthew Eappen prior to the surgery.

A Yes.

Q And you saw —

THE COURT: Excuse me, do we need what's on the —

MR. SCHECK: No, no. I'm sorry, thank you.

Q And I'll ask you that you take a look quickly at Exhibit 27 while I remove this schematic. You recognize that to be, do you not, the CAT scan showing the subdural as it appeared on February 4th, 1997?

A This is one view, yes.

Q All right. And did you consult or make an

assessment with anybody as to whether or not this CAT scan reflected, or would be consistent with an old subdural hematoma with a re-bleed into it?

A Yes. And my conclusion was that this was a fresh bleed.

Q Well, so the answer is yes, you made such a

consultation.

A When I was given —

THE COURT: No, just yes or no, please.

Q Did you make such a consultation?

A Yes.

Q Did you make that consultation on February 5th?

A I don't remember the exact date that I reviewedthese with Dr. Cleveland, but I think it was probably the 5th, yes.

Q The CAT scan, you reviewed with Dr. Cleveland.

A I reviewed all of the C-T materials with Dr. Cleveland, and in addition ~

Q So the answer is yes, you think you reviewed the

CAT scan with Dr. Cleveland.

A That is my recollection, yes.

Q Now, Dr. Cleveland is the, his field is radiology.

A Yes.

Q Not neuroradiology per se.

A That is correct, yes.

Q And Dr. Cleveland is the person that ordinarily is called upon to discuss the skull fracture films, for example, or wrist fracture films.

THE COURT: Excuse me. Any need for the two of you to be standing?

MR. SCHECK: Yes, just one more second.

THE COURT: You may answer the question about Dr. Cleveland and wrist fractures.

THE WITNESS: Thanks, Your Honor.

A Dr. Cleveland is the member of the Child Protection Team who is designated by the radiology departments to work with us. His expertise in radiology extends beyond the evaluation of bone fractures and he, on occasion, consults with me about neuroradiology studies.

Q But that's not his area of expertise, neuroradiology.

A He's not a neuroradiologist.

Q Thank you. Was there any neuroradiologist that consulted with you on February 5th before you spoke to the police about your opinion in this case as to the nature of this image. Exhibit 27, or others in the CAT scan?

A Right, there —

Q Were there any others, just tell me that.

A Yes,

Q Who else?

A Neuroradiologists have written reports in the

record. I reviewed those reports at the time that I met with —

Q On February 5th?

A I believe on the 5th.

Q And that would be Dr. Robeson's report you think you reviewed?

A I can't recall specifically, counsel.

Q Was there any specific discussion that you had with anyone as to whether or not this could represent an old subdural? And by "old," I mean somewhere in the nature, for example, of three weeks, with a re-bleed into it, any discussion of that possibility?

A Well, not that specific possibility. But old versus new subdurals comes up in these cases all the time, and I'm confident that it was discussed. yes.

Q Just tell us what you remember as to whether or not, not what usually is done but whether or not in this case, there was such a discussion if you recall.

A If I recall, there was.

Q You do recall?

A Yes.

Q All right. With whom did you have that discussion?

A My own discussion would have been with Dr. CI eve!and.

Q Well, are you telling us, please be specific now, are you telling us from your own independent personal recollection, that you had a discussion with Dr. Cleveland with respect to whether this CAT scan image of the subdural could represent an older injury with a new re-bleed into it, yes or no, did you have such a discussion?

A I can't answer the question yes or no. I can tell you what we talked about.

Q Well, you had a discussion with Dr. Cleveland that addressed this subject, is that what you're telling us?

A Yes, old versus new was addressed.

Q Okay. Did you consider on February 5th this

darker area between the skull and the whitish clot that I'm pointing to here on Exhibit 27?

A I don't recall that particular cut being described in that way.

Q Did you consider that this darkish area there

might be serum? A No.

Q Do you know — serum, you would agree, is when it comes spurting out, for example, if the dura were punctured in this area; it would look clearish and yellow?

A Serum is clearish and yellow, yes.

Q And if this were, in fact, serum, would that not indicate the existence, the possibility of an older injury?

A Yes. There would be a possibility of an older injury if that were, in fact, serum.

Q And serious consideration would have to be given if that were, in fact, serum, to the question as to whether this was an older injury, fair enough?

A Yes, but it wasn't.

Q You know it wasn't?

A The studies —

Q Do you know that what — do you recall from your review of the medical records that Dr. Madsen punctured the dura in this area and described fluid coming out, you recall that?

A Yes.

Q Do you recall reading that in the medical records?

A Yes.

Q Are you telling us as you stand here today, that

it is his position that the clearish fluid he

described as coming out was not serum? A I cannot comment on what his position was. I have not listened to his testimony, I have not talked with him about this specifically.

Q But your position just a second ago was that wasn't serum, didn't you just say that?

A My position was that there were no artifacts of recent — I beg your pardon. There were no artifacts of older —

MR. SCHECK: Move to strike the answer.

THE COURT: Excuse me. Is there any need to stand where you're standing?

MR. SCHECK: Yes, I want to be very clear about the serum question and then we'll sit down if that's okay with the Court.

THE COURT: All right, well, you can stand over there.

MR. SCHECK: I will stand over there.

THE COURT: And, Doctor, you can stand over there.

THE WITNESS: Yes, Your Honor.

THE COURT: Now, the motion to strike the answer is allowed. Answers will be given yes or no, or an indication of an inability to answer yes or no. No other answer will be appropriate.

THE WITNESS: Thanks, Your Honor. Q Doctor, we can read back the testimony if you want. Did you not just tell us about a minute ago, that what came out of this area, hypo-dense area we're pointing to on Exhibit 27, was not serum?

A Counsel, I don't recall precisely my answer, but I

can give you a clear response.

Q Well —

A My clear response is, I recall —

THE COURT: Doctor, Doctor, Doctor. Remember the three choices.

THE WITNESS: Thanks, Your Honor.

Q Did you tell us just a minute ago, unequivocally, that what came out of there was not serum?

A I don't recall precisely what I said. I'm trying to —

THE COURT: Very well.

MR. SCHECK: Your Honor, I want to ~

THE COURT: He said he did not recall.

MR. SCHECK: Can we have a read back?

THE COURT: No. The jury will recall the testimony and will be waiting for more testimony. So let's give them some.

Q Now, Doctor, you agree, do you not, that if, in fact, what came out of this dark area I'm pointing to on Exhibit 27 was, in fact, serum, clearish yellow fluid, that that would be a strong sign to you that this was an old dura injury?

A No, I don't believe there are any old injuries here.

Q Answer my question, okay. Serum, in other words, would not be a sign to you that this was an older injury, if it were, in fact, serum.

A I did not, I do not see artifacts of older injury here —

THE COURT: No, the question is: What is the significance, essentially, the question is what is the significance of serum? But it's a more pointed question than that. You may put the question again, you may answer the question.

Q Doctor, would you not agree that if, in fact, what came out. of this darker area I'm pointing to, when Dr. Madsen punctured the dura was serum, that that would be a strong sign that this was an old injury?

A If it were serum, it may indicate an older injury.

Q And, Doctor, if I represent to you that Dr. Madsen came before this jury and said, without any hesitation, that the clearish fluid that he saw come out of this area when he punctured the dura was serum, a clearish fluid, clearish yellow fluid; would that give you some pause with respect to your interpretation of the age of the injury in this case?

MR. LEONE: Objection.

THE COURT: No, I'll allow it.

A No, I believe these injuries are recent.

Q In other words, you would not take Dr. Madsen's — Doctor, let's just be clear. If Dr. Madsen came right here and said to you —

MR. LEONE: Objection. THE COURT: No, that's ~

Q You're saying that even if Dr. —

MR. LEONE: Objection. THE COURT: No, just a moment. You may finish the question. You will pause. Doctor, before answering it. You will allow the question, Mr. Leone, to be asked. Carry on.

Q Even if Dr. Madsen came here and told you that the clearish fluid that came out of this dark area was serum, that would not in any way give you pause in your interpretation as to the age of the injury?

MR. LEONE: Objection.

THE COURT: I'll allow the question. You may answer it yes or no. A I believe the injuries are fresh. I do not believe that even if serum —

THE COURT: Doctor —

A — were present—

THE COURT: Doctor —

Q I'll allow this. Even if serum were present —

MR. SCHECK: Well, I'm sorry, I'll obey the Court's instruction. Thank you, Doctor. Q Oh, one more thing on this. You're aware. Doctor, that Dr. Madsen evacuated the clot. You're aware of that through your review of the medical records.

THE COURT: The question is: Are you aware that Dr. Madsen evacuated the clot?

A Yes. And I'm pondering because there was more than a clot —

THE COURT: Doctor ~

A ~ there was more that he did, that's the reason for the delay. That was part of what he did, yes.

Q All right. And you are aware that the clot that came out was removed, described in the medical records as a "dark currant jelly," was not preserved and sent to pathology as a specimen.

A Yes.

Q Okay. Now, you are aware that a neuropathological examination was performed here.

A Yes.

Q And would you not agree that evidence from the

dura — let me start back —

MR. LEONE: Do we have any further

questions on —

THE COURT: Excuse me, do we need the—

MR. SCHECK: We don't need this, I'm sorry.

THE COURT: All right. Q Would you not agree, Dr. Newberger, that a

neuropathological examination of clot could reveal evidence of older injury, that kind of thing can be done?

A I don't believe so, counsel. Q Well, would you not agree that the existence of capillaries, the growth of capillaries, if found in clot, could be evidence of older injury?

MR. LEONE: Objection, hypothetical form, please.

THE COURT: No, I'll allow it.

A What I recall —

THE COURT: No, yes, no, or I can't answer.

THE WITNESS: I beg your pardon, Your Honor.

A I can't answer.

Q Doctor, in terms of analysis of dura, if there is evidence of the growth of another membrane, with respect to subdural hematomas found on the dura, would that not be evidence of older injury?

A It can be, yes.

Q Would not the growth of capillaries, subdural hematomas found on the dura, be evidence of an older injury?

A They can be, yes.

Q Now, Doctor, if you were presented with neuropathological evidence that Matthew Eappen had subdural hematomas, that from organization that is, capillaries and membranes, indicated injury of about three weeks old and evidence of re-bleed, if you saw such data, would that change your opinion in this case?

A Yes.

MR. LEONE: Your Honor, can we have a repeat limiting instruction, please, at this point?

Q Now, Doctor —

THE COURT: No, I think we'll just leave it the way it is.

Q Doctor, the history that you had on February 5th in this case, was that on the morning of February 4th, Matthew Eappen was a normal, healthy child.

A Yes.

Q You did not have a history that, on the morning of February 4th, Matthew Eappen appeared lethargic

that's nowhere in the medical records, is it?

A Not to my knowledge, no.

Q And nobody ever told you that on February 5th to

your recollection.

A That is correct.

Q You did not have a history on February 5th indicating that Matthew Eappen was unusually sleepy.

A That is correct.

Q You did not have a history that he had been

difficult to arouse.

A That is also correct.

Q You did not have a history that in his waking state, he was highly irritable and cranky.

A That is correct.

Q You did not have a history that he had had, over the past two days, a loss of appetite.

A That is correct.

Q You did not have a history that the baby was unable to move his bowels for two days.

A I don't recall such a history, no.

Q Now, Doctor, if you had such a history, and

looking at those symptoms taken together, would you not agree that those symptoms can be the clinical signs of a slowly developing subdural bleed?

A No

Q Doctor, infants can have mild impact injuries, the equivalent of a fall from a short distance less than three feet, and fracture their skulls.

A Yes.

Q Linear fractures.

A Yes.

Q Linear fractures such as we saw in this case. I mean, let me put it to you this way: This is a linear fracture that we saw in this case.

Q Yes.

Q And infants can fall ~ and you would agree that a skull fracture is not predictive one way or the other of brain injury. There could be brain injury, there might not be brain injury, when you see the skull fracture.

A Yes. But whenever there is a skull fracture one always must be concerned about brain injury because the skull fracture may be —

THE COURT: No, the question is: Is it predictive? And your answer, I take it, is no.

Q: And —

THE COURT: Is that correct? Just so the record is clear.

THE WITNESS: Your Honor, there is an association which should not be ignored.

Q And would you not agree. Doctor, that infants can have these mild impact falls with linear skull fractures and sustain subdural hematomas?

A No, children do not generally, with mild impact falls, sustain subdural hematomas.

Q Well, you're saying that it doesn't happen, that children who have mild impact falls such as we described, linear skull fractures, do not get — and I'm not talking about massive subdural hematomas, but subdural hematomas developing different areas of the dura.

A That is my testimony, counsel, yes, it does not happen, hardly at all. It may happen on a rare occasion. But when a subdural is present, in association with a fracture, it nearly always signifies a substantial amount of trauma, or another process other than what you characterize as a "miId impact fal1."

Q And, Doctor, would you not agree that a child can, when children sustain subdural hematomas at this age, around eight months, that often they are bi1ateral? A Yes.

Q And when we say "bilateral," that doesn't mean that exactly the same amount of bleed occurs in each different area of the skull?

A That's correct.

Q So you can have, from one impact, a skull fracture and a subdural in the right parietal area, the subdural in the left parietal occipital area, and a subdural, small subdural, in the left lower tentorium, that can happen.

A I think it would be a vanishingly rare event.

Q Now, Doctor, with respect to falls and skull fractures, if the skull fracture in this case occurred about three weeks prior to admission, would not this bone window that we've discussed before. Exhibit 38, be consistent with what you would expect to see upon admission, in terms of the swelling?

A I'm sorry, I don't understand this question.

Q If the baby had fallen and sustained the skull fracture three weeks earlier, and swelling had gone down, whatever swelling had occurred had gone down, would you not expect three weeks later upon admission, that this bone window that we see in Exhibit 38, reflecting what we agreed before was virtually no swelling, that would be consistent with such a history.

A Yes.

Q And the absence of swelling to the touch, or a goose egg, would be consistent with an incident where the skull was fractured three weeks earlier.

A Yes.

Q Now, Doctor, have you ever heard of something

called "talk, deteriorate, and die"?

A Yes.

Q And would it not be true that this is the

situation that sometimes arises when a child, or an adult, sustains an impact injury to the head, develops a subdural hematoma that stops bleeding, and then has no loss of consciousness; and then at some period subsequent, there is a re-bleed mass effect and bad results where the patient either deteriorates or can, in fact, die?

A That was not, as I understand it, the description in the neurosurgical literature on this phenomenon.

Q Have you ever read any articles by Dr. Ayub

Ommaya, or Dr. Thibault, on the issue of talk,

deteriorate and die?

A Not by either of them to my knowledge.

Q Have you read any articles by Dr. Duhaime on what she characterizes as "disappearing subdurals"?

A No, I don't recall reading an article by her on disappearing subdurals.

Q But you have heard of this sequence of events,where there can be an impact injury without a lossof consciousness, a subdural hematoma, and then at some period afterwards a re-bleed, you've heard of that happening.

A Counsel, I believe that the syndrome that's described does not include re-bleeding.

THE COURT: No, no, just that can happen, is the question.

Q Just, you've heard of that sequence of events

occurring,

A With the exception of the re-bleed, yes.

Q You've never heard, and you've never encountered in your experience, a patient suffering from a subdural hematoma, and then weeks, or even months later, a re-bleed? You've never encountered that?

A I can't respond to this question yes or no. I can describe an experience for you however.

Q Well, your answer is you can't tell me whether you've ever encountered that or not?

A I cannot recall encountering exactly the scenario that you've described. Many children —

Q So the answer is no.

A — with occurrence —

Q So the answer is no, you've never encountered that.

A No, the answer is I can't answer the question yes or no, that's the answer.

THE COURT: All right.

Ladies and gentlemen, let me just remind you, it's perfectly proper for counsel on cross-examination, either counsel, to put a question to the witness and ask, put a statement to the witness, and ask the witness if the witness accepts, one way or another, what the lawyer is saying. And if the witness does accept it, of course then the statement becomes evidence because the witness has adopted it.

If, on the other hand, the witness does not adopt it, either by saying "no," or by saying, "I can't answer," then the statement, although it's proper to give, is not evidence and is not to be considered as evidence.

Q Doctor, can you assure us that, if you, in

reviewing the evidence in this case, discovered that what, in fact, came out of the subdural hematoma from Matthew Eappen was serum, and then neuropathology shows evidence of older injury, would you come back and tell this jury that you've changed your mind on this matter?

A Counsel, I don't accept the underpinnings of this hypothetical question. There is no evidence of older injury.

THE COURT: No, no.

Q Let me put it to you as specifically as I can.

You've indicated to us before, I take it, that you agree that if, in fact, what we observed in the CAT scan was serum, that that would raise in your mind a serious question of whether or not this was older injury, true?

A No, that was not my testimony.

Q Well, you did tell us that, if neuropathology indicated that this baby had old subdural hematomas on the order of about perhaps three weeks old, right, that that might change your opinion with respect to the age of the injury.

A Yes.

MR. SCHECK: Nothing further.

THE COURT: Any redirect?

MR. LEONE: No, thank you.

THE COURT: Thank you, Doctor, you're excused. Don't discuss your testimony with anybody, except Mr. Leone or Mr. Scheck.

(Witness Excused.)

THE COURT: Next witness, please.

MR. LEONE: The Commonwealth would call Deborah Eappen to the stand,

THE COURT: Ladies and gentlemen, I'm informed that the lunch is a little delayed, not terribly much, but a little. And so I thought we'd continue with the evidence until lunch is available.